Monday, January 15, 2007

In Pursuit of Compliance

In this week's Chronicle of Higher Education, Kevin R. Davis, university counsel at Vanderbilt, opines on the rise and emerging role of the university compliance officer. The job title conjures up an image in the public mind of someone running around with a clip board and a checklist, making sure that the university is following all the rules of tax, copyright, environmental, immigration, discrimination, and every other area in which universities are regulated.

But in Davis's opinion, the job is more complex: "Compliance involves discerning and evaluating a lot of gray areas and, in essence, knowing what one can get away with." Among other examples, Davis cites the indeterminacies of Title IX to prove this point. Noting what counts as "substantial" proportionality is a matter of interpretation, "some institutions, viewing themselves as falling short under the law, deciding strategically how quickly they will act to change their behavior." He continues: "Compliance under Title IX can be measured by institutional trends, and when a college is trending in the right direction, it often claims to be in compliance. "

Davis's point is that, because compliance is a matter of (self-interested) interpretation, internal compliance is not a substitute for regulatory oversight and enforcement. As long as the government continues to provide oversight, there is no problem. But some regulators take it easier on universities with compliance programs, leaving university compliance officers' interpretations of what constitutes compliance unchecked and unchallenged.

Without taking issue with Davis's essential point, I would just point out that a void of government enforcement in the area if Title IX is not as problematic as it sounds. Historically, private enforcement (i.e., lawsuits) has played a far more important role than government enforcement in nudging university athletic departments toward gender equity. No college has ever lost its federal funding, the government's final sanction for failure to comply with Title IX, but the threat of hundred-thousand-dollar settlements or damages awards is definitely real. I don't know of any court that has deferred to the definition or timetable of compliance put forth by a university's compliance officer.